Citation NR: 9739123
Decision Date: 11/24/97 Archive Date: 12/03/97
DOCKET NO. 96-19 781 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased evaluation for lumbosacral strain
with arthritis, currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
J. McGovern, Associate Counsel
INTRODUCTION
The veteran had active service from December 1965 to December
1967.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from the July 1994 rating decision of the
St. Petersburg, Florida Department of Veterans Affairs (VA)
Regional Office (RO), which denied an increased rating for
lumbosacral strain.
By rating decision dated in July 1996, the RO noted that the
arthritis of the lumbar spine could not be dissociated from
the veteran’s service-connected lumbosacral strain and
granted an increased evaluation of 20 percent for lumbosacral
strain with arthritis, effective from October 1994. The
Board notes that the veteran may still receive an evaluation
in excess of 20 percent for his lumbosacral strain with
arthritis. Therefore, the issue of entitlement to an
evaluation in excess of 20 percent for lumbosacral strain
with arthritis is now before the Board. AB v. Brown, 6 Vet.
App. 35 (1993).
In statements in support of claim, the veteran asserted that
service connection was warranted for arthritis in his back.
In a July 1996 rating decision, the RO granted an increased
evaluation of 20 percent for lumbosacral strain with
arthritis. The decision appeared to limit service connection
to arthritis of the lumbar spine. The Board notes that the
record contains evidence of arthritis of other segments of
the spine. It is unclear whether the veteran is seeking
service connection for arthritis of the dorsal spine and/or
the cervical spine. This matter is referred to the RO for
clarification.
The representative has asserted that the veteran’s back
disability may include disc involvement. The Board notes
that it appears that the representative may be claiming
entitlement to service connection for invertebral disc
syndrome and this matter is referred to the RO for
clarification.
REMAND
The veteran contends that his lumbosacral strain with
arthritis is more disabling than the current 20 percent
evaluation reflects, thereby warranting an increased rating.
The representative asserts that a remand is warranted for an
additional VA examination.
The veteran underwent VA examinations of the spine in March
1994, April 1995, and February 1997. A review of the claims
file reveals that the RO has been unable to obtain the April
1995 VA examination report. The Board finds that an
additional attempt to obtain the April 1995 VA examination
report is warranted.
On VA examination in March 1994, the veteran’s carriage,
posture, and gait were good or normal; there were no fixed
deformities of the spine; the musculature of the back
appeared normal; and no neurologic involvement was
identified. Range of motion testing revealed forward flexion
to 90 degrees, backward extension to 30 degrees, lateral
flexion to 35 degrees bilaterally, and rotation to 30 degrees
bilaterally. The relevant diagnosis was chronic postural
lumbar strain with arthritis and degenerative joint disease
of the spine.
Two October 1994 VA outpatient treatment records reveal that
the veteran complained of low back pain. An October 8, 1994,
treatment record shows that the veteran had decreased flexion
of the back which was only to 30 degrees, that lateral
bending was to 20 to 30 degrees, and that straight leg
raising was negative. The October 18, 1994 examiner noted
that there was no lesion, tenderness to palpation, sensory
deficit, or limitation of motion of the lumbar spine. The
relevant assessments included paravertebral muscle
spasm/strain, osteoarthritis, and chronic back pain not
responsive to Motrin.
At the February 1997 VA examination, the examiner noted that
the claims file was not available for review. The veteran
complained of back pain on use, low back muscle spasms, weak
legs and arms, and inability to bend down. He reported that
he wore a narrow back brace. The veteran stated that he was
having a muscle spasm flare-up at the time of the
examination. The examiner noted that there were no postural
abnormalities or fixed deformities. On examination, the
spinous processes were tender on deep palpation from the low
dorsal area to the sacral area and there was minimal
paraspinal muscle guarding without tenderness of the muscles
themselves. The examiner noted that there was tenderness in
both kidney areas in the flanks and that there was positive
Lasegue’s sign to 15 degrees. Ely and Fabere’s signs were
negative. Neurologic examination was within normal limits.
The examiner reported that the veteran refused range of
motion testing of the spine, stating that he feared that the
pain would worsen if he bent over. The examiner noted that
there was no objective evidence of pain on motion and that
the only objective finding of pathology was the X-ray
evidence of degenerative joint disease of the low back. The
diagnosis was degenerative joint disease of the dorsal and
lumbar spine.
The Court of Veterans Appeals (Court) has held that, when a
diagnostic code provides for compensation based solely upon
limitation of motion, the provisions of 38 C.F.R. §§ 4.40,
4.45, 4.59 (1996) must also be considered, and that
examinations upon which the rating decisions are based must
adequately portray the extent of functional loss due to pain
“on use or due to flare-ups.” DeLuca v. Brown, 8 Vet. App.
202, 206 (1995). The veteran’s lumbosacral spine disability
is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes
5010-5295 as arthritis and lumbosacral strain. Diagnostic
Code 5010 provides for compensation based solely upon
limitation of motion. The Board notes that the RO and VA
examiners did not adequately address functional loss due to
pain.
The Board notes that the veteran refused to perform range of
motion testing of the spine at the February 1997 VA
examination and that the examination report is, therefore,
inadequate for rating purposes. The most recent other
medical evidence of record consists of a March 1994 VA
examination and VA outpatient treatment records through
October 1994, some of which show that the veteran had
decreased range of motion of the lumbosacral spine. Although
the veteran refused to submit to range of motion testing at
the most recent VA examination, the Board finds that the
veteran should be afforded another opportunity to attend a VA
examination, with the understanding that failure to attend or
failure to cooperate during the examination without good
cause may result in the denial of his claim for increased VA
benefits.
Therefore, RO should advise the veteran of the potential
implications that failing to report for or cooperate during a
VA examination may have upon his claim for benefits. The
veteran must be prepared to meet his obligations by
cooperating with the VA’s efforts to provide an adequate
medical examination and submitting to the Secretary all
medical evidence supporting his claim. See 38 C.F.R.
§§ 3.326, 3.655 (1996); Olson v. Principi, 3 Vet. App. 480
(1992). The veteran is reminded that the VA’s duty to assist
him is not a one way street; the veteran also has an
obligation to assist in the adjudication of his claim. Wood
v. Derwinski, 1 Vet. App. 190, 193 (1991).
In order to ensure that the record is fully developed, this
case is REMANDED to the RO for the following:
1. The RO should attempt to obtain the
report of the April 1995 VA examination
of the spine from the Miami, Florida VA
Medical Center.
2. The RO should contact the veteran and
request that he identify all treatment or
evaluation he has received for his
service-connected lumbosacral spine
disability since 1993. After obtaining
the appropriate authorization, the RO
should attempt to obtain any medical
records identified that are not already
in the claims file. Any records obtained
should be associated with the claims
folder.
3. The veteran should then be afforded a
comprehensive VA orthopedic examination,
to determine the current manifestations
and severity of his service-connected
lumbosacral strain with arthritis. He
should be advised of the possible
consequences of failing to report for the
examination without good cause. The
veteran’s claims folder and a separate
copy of this remand should be made
available to the examiner, the receipt of
which should be acknowledged in the
examination report. Any indicated
studies, including X-rays or imaging
studies, should be performed. The
veteran’s history, current complaints,
and examination findings must be reported
in detail by the examiner.
The examiner should note whether the
veteran does or does not have the
following: listing of whole spine to
opposite side; positive Goldthwait’s
sign; marked limitation of forward
bending in a standing position; loss of
lateral motion, osteo-arthritic changes;
narrowing or irregularity of joint space;
abnormal mobility on forced motion;
muscle spasm on extreme forward bending;
or loss of lateral spine motion,
unilateral, in a standing position. The
examiner should specifically report
active and passive range of motion of the
lumbar spine.
The examiner should comment on the
functional limitations, if any, caused by
the veteran’s service connected arthritis
of the lumbosacral spine in light of the
provisions of 38 C.F.R. §§ 4.40, 4.45,
noting whether the arthritis causes
weakened movement, excess fatigability,
or incoordination. Also, if possible,
the examiner should specifically report
the degree of any additional range of
motion loss due to any weakened movement,
excess fatigability, incoordination, or
pain on movement , and comment on how and
to what extent these manifestations
affect the veteran. If the severity of
these manifestations can not be
quantified, the examiner should so
indicate. With respect to the subjective
complaints of pain, the examiner is
requested to specifically comment on
whether pain is visibly manifested on
movement of the lumbosacral spine, the
presence and degree of, or absence of,
muscle atrophy attributable to the
service-connected disability, the
presence or absence of changes in
condition of the skin indicative of
disuse due to the service-connected
disability, or the presence or absence of
any other objective manifestation that
would demonstrate disuse or functional
impairment due to pain attributable to
the service-connected arthritis of the
lumbosacral spine.
All findings should be reported in
detail, a complete rationale must be
given for any opinion expressed, and the
foundation for all conclusions should be
clearly set forth. A comprehensive
report which addresses the
aforementioned, should be provided and
associated with the claims folder.
4. The RO should then review the record.
If the examination report is not
responsive to the Board’s instructions,
it must be returned to the examiner as
inadequate.
5. The claim should then be
readjudicated with consideration of all
pertinent law, regulations, and Court
decisions, to include 38 C.F.R. §§ 4.10,
4.40, 4.45, 4.59, and DeLuca. If the
veteran’s claims remain denied, he and
his representative should be provided
with a supplemental statement of the
case, which includes any additional
pertinent law and regulations and a full
discussion of action taken on the
veteran’s claim, consistent with the
Court’s instructions in Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). The
applicable response time should be
allowed.
This case should then be returned to the Board, if in order,
after compliance with the customary appellate procedures. No
action is required of the veteran until he is so informed.
The Board intimates no opinion as to the ultimate decision
warranted in this case, pending completion of the requested
development.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Mark J. Swiatek
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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